Earlier this week, the House Oversight Committee recommended that the full House find Attorney General Eric Holder in contempt of Congress for failing to turn over materials relating to the Fast and Furious investigation. Clearly, the contempt proceedings are a high-caliber shot across the bow of the Obama administration. But this is not yet a full-fledged constitutional crisis pitting the executive branch against the legislative branch. Whether it will become one remains to be seen.
Much depends on how the principals themselves — Speaker John Boehner and Attorney General Holder — meet their responsibilities to sit down and attempt to construct a procedure through which the Oversight Committee can secure the information it needs (and to which it clearly is entitled) to fully investigate Fast and Furious. If these efforts fail, the full House will vote next week to find Holder in contempt.
Even a vote by the full House would not be unprecedented. A similar but not identical stand-off occurred between the Democrat-controlled House and former President George W. Bush’s last attorney general, Michael Mukasey, in 2008. Mukasey ultimately refused to enforce the contempt citation issued by the House against two high-ranking administration officials. The Republic survived that mini-crisis in much the same way it has so many other ones. Each time, either a compromise has been reached or an election has intervened and changed the participants, and then everyone has moved on to other concerns.
Complicating the contempt issue in this latest tug-of-war between the Oversight Committee and the Justice Department is the perennial question of “executive privilege.”
The doctrine of executive privilege is found neither in the Constitution nor in law, and its parameters remain as blurred today as when the concept was first enunciated by George Washington in 1796. In the decades since our first commander-in-chief refused to turn over to the House certain documents relating to treaty negotiations between the United States and Great Britain, virtually every president has at some point in his term refused to provide information demanded by the House of Representatives.
Our nation’s first chief justice, John Marshall, recognized a form of executive privilege in the seminal 1803 Supreme Court opinion Marbury v. Madison, which famously established the principle of judicial review. However, the Supreme Court has never definitively determined the precise parameters of the privilege.
Interestingly, it was not until 1954 that the term “executive privilege” actually entered government lexicon. President Dwight Eisenhower coined the term during a stand-off between his administration and Sen. Joseph McCarthy. In a letter to the Senate that was breathtakingly broad in its sweep, Eisenhower declared that a president could refuse to turn over to Congress basically any document he decided was “privileged.” It is this broad interpretation of executive privilege that has found favor among modern presidents of both major political parties as a way to delay or scuttle congressional investigations.
In the case at hand, pitting Holder against the Republican House majority, the assertion of executive privilege appears weak — seeming to encompass internal Department of Justice deliberations which could touch on possible efforts to obstruct the Fast and Furious investigation.
However, if history is any guide, we will emerge from this current episode with no firmer understanding of how much Congress can demand of an administration — or conversely, to what extent a president can shield internal materials from prying congressional eyes — than we did when the chessboard was first set up last year. While this seems to be the way leaders in both major political parties ultimately prefer the game be played, it perpetuates the constitutional confusion that has left the American people uncertain about whether those in positions of power are operating within the limits envisioned and established by our Founding Fathers more than two and a quarter centuries ago.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.